Editorial: EPA reining in overreach on water rules

The Trump administration’s Environmental Protection Agency is rolling back another Obama era overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known colloquially as the waters of the United States or WOTUS.

Acting EPA Administrator Andrew Wheeler announced the change this past week, saying the rule rollback means the Clean Water Act applies to traditional navigable water and their immediate tributaries.

“Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals,” Wheeler was quoted as saying.

That apparently would include Northern California farmer John Duarte who wound up paying more than $1 million in fees and fines because he plowed his 450-acre farm to plant wheat. Dirt was apparently a pollutant and the farm was nowhere near navigable water, but had a few seasonal pools.

The changes bring the enforcement of the law back into compliance with Supreme Court Justice Antonin Scalia’s interpretation in a 2006 court ruling under a prior administration, “In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’ See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of the ‘the waters of the United States’ is thus not ‘based on a permissible construction of the statute.’”

In another example of federal overreach, in December 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.

In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Now the Trump administration has reined in the EPA.

At one point the House and Senate passed resolutions that would have blocked the EPA WOTUS rule, but the Senate failed to override Obama’s veto.

“We will be sued, I’m sure,” EPA’s Wheeler told The Wall Street Journal. “But what we’ve tried to do is draft a proposal that will stand up in court.”

6 comments on “Editorial: EPA reining in overreach on water rules”

This article is a good example of why editorials can be deceiving, because, by their nature, editorials don’t claim to accurately represent all of the facts. Stacking the deck or building a straw man in order to knock it down is fair game. Instead, I prefer to read news articles from neutral sources. This story looks much different in view of the facts.

In the link provided above, it clearly states that 95% of California’s Central Valley vernal pools are gone. The government is supposed to respond to the majority. I suspect a majority of voters would agree that saving the 5% remaining should be a greater priority than that of a multimillionaire buying land for the express purpose of eliminating the existing vernal pool. How do I know he’s a multimillionaire? Because his Web site says, “Duarte Nursery is the largest permanent crops nursery in the United States…”

According to the Army Corps of Engineers, Mr. Duarte didn’t just plow the land. He “deep ripped” the land and deposited the dredged soil illegally onto the farm’s wetlands. Someone sophisticated enough to own the largest permanent crops nursery in the country,
is undoubtedly being informed by sophisticated professionals, who may well have told Duarte that his plans might be considered illegal. It wouldn’t surprise me if this turns out to be, like the baker who wouldn’t bake a cake for a gay couple, an intentional violation perpetrated in order to bring it to the courts.

This article also says the law was ” intended to prohibit pollutants being dumped into navigable waters…”. The Economist sees it differently. They say the law says absolutely nothing about “navigable” anything. Instead, it says that the vague phrase. “waterways of the United States” , “…has been the subject of redefinition and litigation ever since.” “The Supreme Court looked at it in 2006 and , “…failed to muster a majority opinion. ”

With a Republican majority and Republican President, Congress could clearly define it in a heartbeat, so why don’t they bother? Because it might alienate the majority of voters. If a pollutant is dumped into a drainage ditch that feeds a river, how is the end result any different that if it was dumped directly into the river? None, of course. “Navigable” is merely an attempt by Conservatives to create a huge loophole in the Cleat Water Act.
(Economist 12/15/18, p. 29. “WOTUS, WOTUS everywhere”)

I neglected to point out another convenient omission: “The changes bring the enforcement of the law back into compliance with Supreme Court Justice Antonin Scalia’s interpretation in a 2006 court ruling under a prior administration…” As I stated, the Supreme Court never arrived at a majority opinion on this case. Thomas’ quote represents only the opinion of Scalia and possibly 3 others on the Court, not the Court itself. Although Thomas’ words are accurate, they could easily be misinterpreted to reach a false conclusion. These kinds of statements are commonly found in editorials. Let the reader beware.

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